Ram Dular vs State of U.P. and Others

P.N. Bakshi, J.—An application u/s 133 Code of Criminal Procedure was filed by Opposite Parties Markandey and others. A conditional order was issued. Ram Dular filed an objection denying the existence of the public right. The Magistrate considered that objection and repelled it. Thereafter he proceeded u/s 138 Code of Criminal Procedure. He recorded the evidence of the parties and also made a personal inspection of the spot. After that he passed an order on 6-7-79 directing Ram Dular to remove the obstruction within 15 days from the public road. Aggrieved thereby a revision was filed before the Sessions Judge, Varanasi, which has been dismissed on 9th August, 79 Hence this application u/s 482 Code of Criminal Procedure.

I have heard learned Counsel for the parties and have also perused the impugned order.

The applicant''s counsel has urged that there is no provision in law for the Magistrate to have made a personal local inspection, proceedings under Chapter X of the Code of Criminal Procedure. Section 139 only empowers a Magistrate conducting an inquiry u/s 137 or 138 Code of Criminal Procedure to direct a local investigation to be made by a person whom he considers fit. u/s 140 Code of Criminal Procedure the Magistrate has to furnish such person with such written instructions as may seem necessary for his guidance. Thereafter such person has to proceed to the spot and submit his report which is to be read in evidence. It is clear that on principles of natural justice, both parties will have a right to file objections to the report of such local inspection, which would be decided by the Magistrate himself, while conducting his inquiry u/s 138 Code of Criminal Procedure. There is no provision in Chapter X Code of Criminal Procedure, which empowers the Magistrate to conduct such an inspection by himself. In my opinion, Sections 133 - 143 lay down the complete procedure which has to be followed by the Magistrate while conducting cases of public nuisance for the purpose of maintaining public order and tranquility. No provision is prescribed therein authorising a Magistrate to conduct a personal inquiry. In my opinion, therefore, an illegality was committed by the Magistrate in following this procedure and in being influenced in his decision, on the basis of his personal inspection. Of course, the rest of the evidence which have been led in the case u/s 138 Code of Criminal Procedure by the parties is perfectly admissible. It is difficult to assess to what extent the trial court has been influenced by the personal inspection. In the instant case the inspection conducted by the Magistrate has to be ignored and the evidence led by the parties has to be reconsidered. These proceedings u/s 133 Code of Criminal Procedure should be finally decided on the basis of the remaining evidence. If, however, the Magistrate considers it necessary he may also depute some suitable person to make the requisite investigation in accordance with law.

In this view of the matter, this application u/s 482 Code of Criminal Procedure is allowed. The impugned orders passed by the Courts below are hereby quashed, and the case is sent back to the SDM Chakia, Varanasi for a re-decision on the basis of the already existing evidence excluding the result of the inspection conducted by the Magistrate. It is desirable in the interest of justice that this case should be decided by some Magistrate, other than the Magistrate who has decided the case in the first instance.